Morrison-Knudsen Company v. Wingate ( 1997 )

Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
MORRISON-KNUDSEN
COMPANY, INC., ET AL.
OPINION BY
v. Record No. 961606 CHIEF JUSTICE HARRY L. CARRICO
September 12, 1997
ALTON BRUCE WINGATE
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
In this slip-and-fall case, a jury awarded the plaintiff,
Alton Bruce Wingate, a verdict for $300,000 against the
defendants, Morrison-Knudsen Company, Inc. and Eugene W. Kelsey &
Son, Inc., a joint venture operating under the name of Kelsey &
Associates. The trial court entered judgment on the verdict, and
we awarded the defendants an appeal.
The plaintiff was injured when he slipped and fell on an
outside stairway at Building 1949 in a housing complex at the
Naval Weapons Station in Yorktown. Building 1949 was one of 36
two-story buildings containing a total of 232 housing units for
which the defendants were awarded a construction contract by the
United States Navy Department in 1981. Pursuant to the contract,
the defendants acted as architect and designer as well as general
contractor for the project, including the exterior stairways.
Building 1949 was the first structure erected, and it was
used as a prototype for the remaining thirty-five buildings. The
second-floor units in each building were reached by an exterior
stairway in the shape of a "Y," with the leg of the "Y" joined to
1
Justice Stephenson participated in the hearing and decision
of this case prior to the effective date of his retirement on
July 1, 1997.
the arms by a landing located approximately one-third of the way
up the stairs.
The original shop drawings for the prototype stairway
specified a "steel trowel finish" for the precast concrete treads
and landing, meaning that the finish would be "relatively
smooth," and the treads and the landing on the stairway in
Building 1949 were finished in this manner. However, after
Building 1949 was completed, "the Navy . . . decided [it] wanted
broom finish instead of steel-trowel finish" on the stair treads,
and a change order was issued directing the replacement of
"[s]tair treads at Bldg. 1949." A note on the change order
stated that the "[o]riginal stair treads were smooth [and should]
have been rough texture." The change order made no mention of
the landing on the stairway in Building 1949.
The stair treads in Building 1949 were replaced with treads
having a "broom finish," meaning that "you still trowel [the
concrete], and then you run a broom over it to get a slight
2
texture." C.H. Morgan, the framing subcontractor who originally
erected the prototype stairway, was employed to do the
replacement work. He asked a representative of the defendants
why the landing was not being replaced and was told that the
surface of the landing would be roughened by application of an
epoxy material. However, the finish on the landing was still
smooth when he examined it some time later.
The plaintiff was employed by a private commercial firm to
2
A broom finish was used on the treads and landings on the
stairways of the remaining 35 buildings in the housing complex.
perform maintenance work at the housing complex after it was
completed. On August 14, 1984, he had been working in a second-
floor unit of Building 1949 when it began to rain. Walking
briskly down the stairway to raise the windows on his van, he
slipped on the wet landing and fell to the bottom of the stairs,
suffering the injuries for which he sought damages in the action
filed below. He examined the landing the day after he fell and
found it was composed of "real smooth concrete," unlike the
"rough, broom-finished concrete" on the steps.
On appeal, the defendants argue that actionable negligence
requires proof of a legal duty to exercise ordinary care for the
safety of another person, a breach of that duty, and an injury
proximately resulting from the breach. The defendants say that
the plaintiff was required to establish by the use of expert
testimony what duty they owed him as designers and general
contractors, yet the plaintiff failed to produce such expert
testimony. Furthermore, the defendants submit, there was no
showing that they breached any duty they owed the plaintiff; he
produced no evidence to show that the trowel finish was unfit or
unsafe for use on an exterior landing or that the trowel finish
constituted a defect in the premises. Hence, the defendants
conclude, their motions to strike and for summary judgment, made
below, should have been granted.
The plaintiff responds that expert testimony was not
required to establish the defendants' duty because this is a case
"in which the facts and circumstances are within the common
understanding and experience of the average lay juror." The
plaintiff maintains that "[f]or a proper statement of the duty
owed to a person injured by a defective condition created by a
contractor, the court must look to tort law and apply the
objective standard of the reasonably prudent man."
Here, the plaintiff says, there was "ample evidence from
which the jury could conclude that [the defendants] failed to use
ordinary care in creating and failing to repair the condition
that caused [the plaintiff's] injury." The evidence showed, the
plaintiff submits, that the defendants failed to use ordinary
care "in (1) designing a stairway composed of a smooth concrete
surface exposed to the weather, (2) replacing all but one surface
when the owner rejected it as too smooth, and (3) failing to
perform the repair they arranged for (application of epoxy)."
Hence, the plaintiff concludes, the trial court did not err in
refusing to grant the defendants' motions to strike and for
summary judgment.
For purposes of this discussion, we will assume, without
deciding, that the plaintiff is correct in his assertion that
expert testimony was not required to prove what duty the
defendants owed him, and we will agree with the plaintiff that
the defendants owed him the duty of ordinary care. Yet, there
remained upon the plaintiff the burden of showing a breach of
that duty by producing evidence of a non-expert nature
establishing that the smooth finish on the landing in the
stairway of Building 1949 constituted what the plaintiff calls "a
hazardous condition . . . created by [the defendants] which they
failed to repair."
We are of opinion that the plaintiff failed to carry his
burden. Indeed, at best, the plaintiff's evidence may be
described as sketchy. He cites the testimony of the defendants'
quality control officer that there is no custom in the building
industry concerning broom-finished versus trowel-finished
concrete. The plaintiff also cites the testimony of the
defendants' project manager to the effect that he was unfamiliar
with building code requirements. The plaintiff then argues that
if the defendants could have shown that they had complied with
applicable industry standards or building codes, "they would have
done so."
The difficulty with this argument is that the burden was not
upon the defendants to show that they complied with industry
standards or building codes, if any were applicable. Rather, the
burden was upon the plaintiff to show that the defendants
deviated from the standard of ordinary care, either by failing to
observe applicable trade customs and building code provisions or
by some other defalcation.
The plaintiff also cites an "acknowledgement" by the
defendants' quality control officer that broom-finished stair
treads "give you more traction" than smooth-finished treads,
especially in damp "climates such as you have in Yorktown," and
that if he were building the stairs and landings, he would prefer
a "real light broom finish." Further, the plaintiff cites a
statement by the defendants' project manager to the effect that
he did not know why the Navy requested the change to broom-
finished treads "other than that they wanted the stair treads to
be rougher."
However, all that this evidence establishes is the obvious:
broom-finished concrete provides a rougher surface with better
traction than smooth-finished concrete. It does not prove that a
smooth finish is inherently unsafe or unfit for use on an
exterior landing. Simply because one method of finishing
concrete may be better or preferable to another does not mean
that the other is necessarily unacceptable or that its use would
constitute negligence under circumstances similar to those
present here.
Next, the plaintiff cites the testimony of C.H. Morgan, the
framing subcontractor who originally erected the prototype
stairway and later replaced the treads pursuant to the change
order. Morgan stated that in his forty years of building
experience, he had never seen smooth-finished concrete used in a
public area.
But Morgan's "business, . . . on this particular project,
was to do carpentry and framing and trim work." He had never
participated in the design of concrete forms or concrete
structures, had no expertise in concrete, and was only generally
familiar with what concrete finishes are used on common walkways
and areas. While he found the use of smooth-finished concrete in
a public area unusual, he did not question its use on the
prototype stairway. And the fact that one person may never have
seen smooth-finished concrete used in a public area does not make
its use in this particular case a breach of the duty to use
ordinary care.
Finally, the plaintiff puts great emphasis upon the change
order requiring replacement of the treads on the prototype
stairway because the "[o]riginal stair treads were smooth [and
should] have been rough texture." The plaintiff says that the
defendants prepared the plans and specifications for the
prototype stairway, which allowed the use of smooth-finished
concrete, that "[t]he Navy rejected the plans and ordered them
changed," and that the defendants complied with respect to all
the buildings in the housing project except Building 1949. "In
other words," the plaintiff states, "these were [the defendants']
own plans, [they] were not approved but rejected and not followed
as modified."
However, there is nothing in the record to justify the view
that the Navy ever "rejected" the use of smooth-finished concrete
on the treads and landing in the stairway of Building 1949.
Rather, the evidence shows that the original plans and
specifications were approved and that the stairway was erected
with smooth-finished concrete in accordance with those plans and
specifications. Only later did the Navy indicate that it
"wanted" the smooth treads replaced by treads with a rough
finish. The change order was then issued and the treads were
replaced. This goes to prove nothing more than that the Navy
changed its mind about the type of finish it wanted on the stair
treads in Building 1949.
Furthermore, the change order made no mention of the landing
in question. Therefore, the order cannot be construed, as the
plaintiff would have us construe it, as imposing upon the
defendants an obligation to "follow" the order by replacing not
only the stair treads but also the landing with broom-finished
concrete.
We are not unmindful of the maxim that, "on appeal, a
litigant who is fortified by a jury's verdict and a trial court's
judgment thereon 'occupies the most favored position known to the
law.'" Virginia & Maryland R.R. v. White, 228 Va. 140, 145, 319
S.E.2d 755, 758 (1984) (quoting Pugsley v. Privette, 220 Va. 892,
901, 263 S.E.2d 69, 76 (1980)). But it is the duty of this Court
to set aside a jury verdict, even though approved by the trial
court, when it is not supported by evidence and could only have
been reached through speculation and conjecture. Wagman v.
Boccheciampe, 206 Va. 412, 418, 143 S.E.2d 907, 911 (1965).
Here, the plaintiff failed to establish that the use by the
defendants of smooth-finished concrete on the landing in question
constituted a defect or a hazardous, unsafe, or unfit condition
which the defendants were bound to repair. Therefore, the jury's
verdict finding that the defendants breached their duty of
ordinary care is not supported by evidence and could only have
been reached through speculation and conjecture. Accordingly, we
will reverse the judgment of the trial court, set the jury
verdict aside, and enter final judgment here in favor of the
defendants.
Reversed and final judgment.